Greg Herden, Roger Herden, and Garrett Herden (the Herdens) sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. They alleged their cattle operation suffered damage because of a seed mixture an employee of the United States Department of Agriculture (USDA) directed them to plant on their land. The district court[1] dismissed the Herdens' claims, concluding the federal employee's conduct fell within the FTCA's discretionary-function exception. After a divided panel of this court reversed the district court, the en banc court granted the government's petition for rehearing. We now affirm the district court.

I

The Herdens operate a three-generation[2] cattle farm in northern Minnesota. In May 2004, the Herdens chose to participate in the Environmental Quality Incentives Program (EQIP). EQIP is a program run by the USDA through the Natural Resource Conservation Service (NRCS). "The purpose of EQIP is to promote agriculture production, forestry management, and environmental quality as compatible goals, and to optimize environmental benefits." Megan Stubbs, Cong. Research Serv., R40197, Environmental Quality Incentives Program (EQIP): Status and Issues 1 (2009); see also 16 U.S.C. § 3839aa (reciting the purposes of EQIP). Through EQIP, the government provides financial and technical assistance to farmers and ranchers. In exchange, farmers and ranchers who choose to participate in EQIP implement conservation measures "to address soil, water, air, and related natural resources concerns . . . on their lands in an environmentally beneficial and cost-effective manner." 7 C.F.R. § 1466.1 (2004). In this case, the Herdens agreed to plant a mix of grasses and legumes on some of their pasture lands, and the government agreed to reimburse the Herdens 90% of the costs associated with planting the seed mixture chosen by the NRCS.

Because environmental conditions vary widely across the United States, the specific conservation practices approved through EQIP must be determined locally. See 68 Fed. Reg. at 32, 341 (2003) ("A basic element of EQIP implementation . . . is the use of the locally-led process to adapt EQIP to local conditions."). As a result, the NRCS's State Conservationist chooses local employees who will administer the program at specific sites. See 7 C.F.R. § 1466.6 (2004). In Minnesota, William Hunt served as the NRCS's State Conservationist. Hunt delegated seed mixture planting decisions to his staff, including State Grazing Specialist Howard Moechnig. Moechnig was the particular staff member who visited the Herdens' ranch to select a seed mixture.

Moechnig visited the Herdens' operation in the fall of 2004, including a pasture referred to as Section 11. Moechnig observed particularly wet conditions in Section 11. Because of the saturated soil, Moechnig chose a seed mixture with a high amount of Alsike Clover for the Herdens to plant in the pasture. Specifically, Moechnig recommended a mixture comprised of six pounds of Alsike Clover, four pounds of Timothy grass, and three pounds of Garrison Creeping Foxtail grass. Altogether the seed mixture averaged 271 seeds per square foot. Moechnig explained he chose that particular seed mixture for several reasons, including the following: (1) to establish good ground cover; (2) to enhance soil quality; (3) to enhance ground and surface water quality; (4) to prevent erosion; (5) to create wildlife habitat; and (6) to provide good forage. See App. at 37. In addition, Moechnig believed the seed mixture he chose "would continue to provide good vegetation for many years, so cost-sharing it through EQIP was a good investment for NRCS." Id.

Federal regulations require that "[a]ll conservation practices in the EQIP plan of operations must be carried out in accordance with the applicable NRCS field office technical guide." 7 C.F.R. § 1466.9 (2004). When choosing the seed mixture for the Herdens' land, Moechnig referred to Code 512 of the Minnesota Field Office Technical Guide (FOTG).[3] Under a heading entitled "Species Selection, " Code 512 says seed "[m]ixtures will have a recommended seeding rate of 50-70 seeds per square foot." Although the 271 seeds per square foot Moechnig chose for the Herdens' land exceeded this recommended seeding rate, another provision of Code 512 (Table 2 entitled "Mixtures Recommended in Minnesota") specified that "[o]ther mixtures may be used." In fact, Table 2 listed several mixtures that exceeded the recommended seeding rate of 50-70 seeds per square foot.

Similarly, Table 1 entitled "Seeding Rates" allowed for several mixtures that exceeded the recommended seeding rate of 50-70 seeds per square foot.[4] For example, when Alsike Clover is planted alone and not in a mixture, Table 1 recommends planting 3.5 million seeds per acre, which converts to over 80 seeds per square foot. Likewise, the "in mixture" recommendations under Table 1 for Alsike Clover (1.4 million seeds per acre) and Timothy grass (3.69 million seeds per acre) convert to 117 seeds per square foot without including Creeping Foxtail grass.

After Moechnig chose the seed mixture for the pasture in Section 11, Greg Herden said he complained to Moechnig about the high amount of Alsike Clover in the mixture because the clover can create toxic hay for cattle. Moechnig does not recall Herden complaining about Alsike Clover toxicity, but does remember Herden asking for permission to plant a mix containing alfalfa. Moechnig denied permission to plant an alfalfa mix, explaining that alfalfa is hard to establish on wet soils and therefore would neither meet NRCS's environmental goals nor be a good investment for the government. The Herdens chose to comply with Moechnig's seed mixture decision because failure to do so would have resulted in losing the federal funding under EQIP.

After planting the seed mixture in the Section 11 pasture, the Herdens allowed cattle to graze the pasture. They also harvested hay from the pasture and stored it. They later fed the stored hay to their cattle during the winter and spring of 2006-07. The Herdens claim toxic hay began to injure their cattle in the spring of 2007. Several calves were stillborn, and others died shortly after birth. Adult cattle also died. The Herdens attribute the illnesses and deaths of their cattle to the Alsike Clover in the hay harvested from the Section 11 pasture. They claim the losses to their cattle herd have virtually destroyed their multi-generational farming operation. The NRCS contests the Herdens' claims and instead believes mold in improperly stored hay caused the problems with the cattle herd.

In February 2010, the Herdens brought suit against the United States pursuant to the FTCA. They alleged Moechnig was negligent in advising them to plant a seed mixture with such a high amount of Alsike Clover, and his negligence caused injury to their cattle operation and family farm. The government moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The government argued Moechnig's seed mixture selection was the type of policy-implementing decision for which the government is immune from suit under the FTCA's discretionary-function exception. The district court agreed Moechnig's decision was a discretionary one. The district court further determined Moechnig's decision involved the balancing of policy goals and considerations, making it the type of discretionary decision Congress intended to exempt from suit. The district court therefore granted the government's motion to dismiss. The Herdens filed a timely appeal.

II

When a district court dismisses a claim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, we review the dismissal de novo, "placing the burden of proving the existence of subject matter jurisdiction on the plaintiff." Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir. 2005). We may ...

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